BILL NUMBER: SB 88	CHAPTERED  09/19/00

	CHAPTER   492
	FILED WITH SECRETARY OF STATE   SEPTEMBER 19, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 16, 2000
	PASSED THE SENATE   AUGUST 25, 2000
	PASSED THE ASSEMBLY   AUGUST 21, 2000
	AMENDED IN ASSEMBLY   AUGUST 10, 2000
	AMENDED IN ASSEMBLY   JUNE 29, 2000
	AMENDED IN ASSEMBLY   MAY 23, 2000
	AMENDED IN ASSEMBLY   MAY 15, 2000
	AMENDED IN SENATE   MAY 12, 1999

INTRODUCED BY   Senator Sher
   (Principal coauthor:  Senator Vasconcellos)
   (Principal coauthor:  Assembly Member Honda)
   (Coauthors:  Assembly Members Cunneen, Lempert, Margett, Romero,
and Steinberg)

                        DECEMBER 7, 1998

   An act to amend Sections 512, 515, and 516 of, and to add Section
515.5 to, the Labor Code, relating to employment, and declaring the
urgency thereof, to take effect immediately.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 88, Sher.  Overtime compensation.
   (1) Existing law provides that 8 hours of labor constitutes a day'
s work.  Under existing law, any work in excess of 8 hours in one
workday and any work in excess of 40 hours in any one workweek and
the first 8 hours worked on the 7th day of work in any one workweek
is required to be compensated at the rate of no less than 11/2 times
the regular rate of pay for an employee.
   This bill, except as specified, would exempt a professional
employee in the computer software field from this overtime
compensation requirement if the employee is primarily engaged in work
that is intellectual or creative, the employee's hourly rate of pay
is not less than $41.00, and the employee meets other requirements.
   (2) Existing law authorizes the Industrial Welfare Commission to
establish exemptions from the requirement that an overtime rate of
compensation be paid for executive, administrative, and professional
employees, provided that the employee is primarily engaged in the
duties that meet the test of the exemption and the employee earns a
monthly salary equivalent to no less than 2 times the state minimum
wage for full-time employment.
   This bill would further require the executive, administrative, or
professional employee to customarily and regularly exercise
discretion and independent judgment in performing those duties in
order to qualify for the exemption.
   (3) Existing law provides that registered nurses employed to
engage in the practice of nursing shall not be exempted from the
overtime compensation requirements by any order of the commission,
unless they individually meet the criteria for exemption established
for executive or administrative employees.
   This bill would provide that the exclusion from overtime
exemptions for a registered nurse does not apply to a certified nurse
midwife, a certified nurse anesthetist, or a certified nurse
practitioner who is primarily engaged in performing duties for which
the respective certification is required.
   (4) Existing law authorizes the commission to adopt or amend
working condition orders with respect to meal periods.  Other
existing law prohibits, except as provided, an employer from
employing an employee for more than 5 hours per day without providing
the employee with a meal period of not less than 30 minutes, or for
employing an employee for more than 10 hours per day without
providing the employee with a 2nd meal period of not less than 30
minutes.
   This bill would prohibit the commission from adopting a working
condition order that conflicts with those 30-minute meal period
requirements, except that the commission may adopt a working
condition order permitting a meal period to commence after 6 hours of
work if the commission makes a specified determination.
  (5) This bill would declare that it is to take effect immediately
as an urgency statute.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 512 of the Labor Code is amended to read:
   512.  (a) An employer may not employ an employee for a work period
of more than five hours per day without providing the employee with
a meal period of not less than 30 minutes, except that if the total
work period per day of the employee is no more than six hours, the
meal period may be waived by mutual consent of both the employer and
employee.  An employer may not employ an employee for a work period
of more than 10 hours per day without providing the employee with a
second meal period of not less than 30 minutes, except that if the
total hours worked is no more than 12 hours, the second meal period
may be waived by mutual consent of the employer and the employee only
if the first meal period was not waived.
   (b) Notwithstanding subdivision (a), the Industrial Welfare
Commission may adopt a working condition order permitting a meal
period to commence after six hours of work if the commission
determines that the order is consistent with the health and welfare
of the affected employees.
  SEC. 2.  Section 515 of the Labor Code is amended to read:
   515.  (a) The Industrial Welfare Commission may establish
exemptions from the requirement that an overtime rate of compensation
be paid pursuant to Sections 510 and 511 for executive,
administrative, and professional employees, provided that the
employee is primarily engaged in the duties that meet the test of the
exemption, customarily and regularly exercises discretion and
independent judgment in performing those duties, and earns a monthly
salary equivalent to no less than two times the state minimum wage
for full-time employment.  The commission shall conduct a review of
the duties that meet the test of the exemption.  The commission may,
based upon this review, convene a public hearing to adopt or modify
regulations at that hearing pertaining to duties that meet the test
of the exemption without convening wage boards.  Any hearing
conducted pursuant to this subdivision shall be concluded not later
than July 1, 2000.
   (b) (1) The commission may establish additional exemptions to
hours of work requirements under this division where it finds that
hours or conditions of labor may be prejudicial to the health or
welfare of employees in any occupation, trade, or industry.  This
paragraph shall become inoperative on January 1, 2005.
   (2) Except as otherwise provided in this section and in
subdivision (g) of Section 511, nothing in this section requires the
commission to alter any exemption from provisions regulating hours of
work that was contained in any valid wage order in effect in 1997.
Except as otherwise provided in this division, the commission may
review, retain, or eliminate any exemption from provisions regulating
hours of work that was contained in any valid wage order in effect
in 1997.
   (c) For the purposes of this section, "full-time employment" means
employment in which an employee is employed for 40 hours per week.
   (d) For the purpose of computing the overtime rate of compensation
required to be paid to a nonexempt full-time salaried employee, the
employee's regular hourly rate shall be 1/40th of the employee's
weekly salary.
   (e) For the purposes of this section, "primarily" means more than
one-half of the employee's worktime.
   (f) (1) In addition to the requirements of subdivision (a),
registered nurses employed to engage in the practice of nursing shall
not be exempted from coverage under any part of the orders of the
Industrial Welfare Commission, unless they individually meet the
criteria for exemptions established for executive or administrative
employees.
   (2) This subdivision does not apply to any of the following:
   (A) A certified nurse midwife who is primarily engaged in
performing duties for which certification is required pursuant to
Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2
of the Business and Professions Code.
   (B) A certified nurse anesthetist who is primarily engaged in
performing duties for which certification is required pursuant to
Article 7 (commencing with Section 2825) of Chapter 6 of Division 2
of the Business and Professions Code.
   (C) A certified nurse practitioner who is primarily engaged in
performing duties for which certification is required pursuant to
Article 8 (commencing with Section 2834) of Chapter 6 of Division 2
of the Business and Professions Code.
   (D) Nothing in this paragraph shall exempt the occupations set
forth in subparagraphs (A), (B), and (C) from meeting the
requirements of subdivision (a).
  SEC. 3.  Section 515.5 is added to the Labor Code, to read:
   515.5.  (a) Except as provided in subdivision (b), an employee in
the computer software field shall be exempt from the requirement that
an overtime rate of compensation be paid pursuant to Section 510 if
all of the following apply:
   (1) The employee is primarily engaged in work that is intellectual
or creative and that requires the exercise of discretion and
independent judgment, and the employee is primarily engaged in duties
that consist of one or more of the following:
   (A) The application of systems analysis techniques and procedures,
including consulting with users, to determine hardware, software, or
system functional specifications.
   (B) The design, development, documentation, analysis, creation,
testing, or modification of computer systems or programs, including
prototypes, based on and related to, user or system design
specifications.
   (C) The documentation, testing, creation, or modification of
computer programs related to the design of software or hardware for
computer operating systems.
   (2) The employee is highly skilled and is proficient in the
theoretical and practical application of highly specialized
information to computer systems analysis, programming, and software
engineering.  A job title shall not be determinative of the
applicability of this exemption.
   (3) The employee's hourly rate of pay is not less than forty-one
dollars ($41.00).  The Division of Labor Statistics and Research
shall adjust this pay rate on October 1 of each year to be effective
on January 1 of the following year by an amount equal to the
percentage increase in the California Consumer Price Index for Urban
Wage Earners and Clerical Workers.
   (b) The exemption provided in subdivision (a) does not apply to an
employee if any of the following apply:
   (1) The employee is a trainee or employee in an entry-level
position who is learning to become proficient in the theoretical and
practical application of highly specialized information to computer
systems analysis, programming, and software engineering.
   (2) The employee is in a computer-related occupation but has not
attained the level of skill and expertise necessary to work
independently and without close supervision.
   (3) The employee is engaged in the operation of computers or in
the manufacture, repair, or maintenance of computer hardware and
related equipment.
   (4) The employee is an engineer, drafter, machinist, or other
professional whose work is highly dependent upon or facilitated by
the use of computers and computer software programs and who is
skilled in computer-aided design software, including CAD/CAM, but who
is not in a computer systems analysis or programming occupation.
   (5) The employee is a writer engaged in writing material,
including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other
similar written information, either for print or for onscreen media
or who writes or provides content material intended to be read by
customers, subscribers, or visitors to computer-related media such as
the World Wide Web or CD-Roms.
   (6) The employee is engaged in any of the activities set forth in
subdivision (a) for the purpose of creating imagery for effects used
in the motion picture, television, or theatrical industry.
  SEC. 4.  Section 516 of the Labor Code is amended to read:
   516.  Except as provided in Section 512, the Industrial Welfare
Commission may adopt or amend working condition orders with respect
to break periods, meal periods, and days of rest for any workers in
California consistent with the health and welfare of those workers.

  SEC. 5.  This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect.  The facts constituting the necessity are:
   In order, at the earliest possible time, to protect businesses
that rely on the computer industry as well as certain vital health
care professions, it is necessary for this act to take effect
immediately.
